Eli Lilly and Company v. Gitmed et al

Filing 28

ORDER Denying Defendant's 27 Motion to Dismiss signed by District Judge Dale A. Drozd on 08/08/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Eli Lilly and Company,

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No. 1:16-cv-00178-DAD-SAB

Plaintiff,
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

v.
JOHN DEREK GITMED, FELICIA
GITMED, and ANTHONY POLLINO,
JR.,

(Doc. No. 27)

Defendants.

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Plaintiff Eli Lilly and Company commenced this action on February 8, 2016, by filing its

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complaint against defendants John Derek Gitmed, Holly Gitmed, Felicia Gitmed, and Anthony

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Pollino, Jr. (Doc. No. 1.) On May 3, 2016, the assigned magistrate judge issued an order

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granting plaintiff an extension of time until July 8, 2016, in which to serve defendant John

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Gitmed. (Doc. No. 16.) On July 5, 2016, the magistrate judge granted plaintiff a second

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extension of time to September 6, 2016 for plaintiff to carrying out service on defendant John

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Gitmed by. (Doc. No. 24.) On August 2, 2016, plaintiff filed a process receipt and return with

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the court showing that the United States Marshals Service effectuated service on July 15, 2016

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with respect to defendant John Derek Gitmed. (Doc. No. 25.)

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On August 3, 2016, defendant John Gitmed filed a motion to dismiss on the grounds that
the summons expired prior to his being served. (Doc. No. 27.) Rule 4 of the Federal Rules of
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Civil Procedure provides that a summons must be served within ninety days after the complaint is

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filed unless the court finds good cause to extend the time for service. Fed. R. Civ. P. 4(m). On

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two prior occasions, this court extended plaintiff’s time for service after finding good cause to do

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so. Based on those findings, plaintiff was granted until September 6, 2016 to serve the summons

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and complaint on defendant John Gitmed. In his motion to dismiss, defendant John Gitmed states

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that he received the summons on July 13, 2016 (Doc. No. 27 at 2), and the process receipt from

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the United States Marshals Service indicates he was served July 15, 2016 (Doc. No. 26). In either

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instance, it is undisputed defendant John Gitmed received the summons prior to the September 6,

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2016 deadline set by the court’s order which was based on a finding of good cause for the delay

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in carrying out service. (See Doc. No. 24.)

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Accordingly,

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1. Defendant John Gitmed’s motion to dismiss the action for insufficient service (Doc.

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No. 27) is denied;

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2.

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Defendant John Gitmed shall file a pleading responsive to the complaint within
twenty-one days from the date of service of this order; and

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3.

Defendant John Gitmed is advised that failure to file a responsive pleading in

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compliance with this order may result in default being entered against him in this

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action.

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IT IS SO ORDERED.
Dated:

August 8, 2016
UNITED STATES DISTRICT JUDGE

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